Adame v. Mariscal et al

Filing 36

ORDER Vacating Trial Dates, Dismissing Action with Prejudice for Failure to Comply with the Scheduling Order and Directing Clerk of Court Court to Close Case, signed by Magistrate Judge Stanley A. Boone on 9/21/16. CASE CLOSED. (Gonzalez, R)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 JESSE ADAME, 12 Plaintiff, 13 14 v. F. MARISCAL, et al., 15 Defendants. 16 Case No.: 1:14-cv-01596-SAB (PC) ORDER VACATING TRIAL DATES, DISMISSING ACTION WITH PREJUDICE FOR FAILURE TO COMPLY WITH THE SCHEDULING ORDER AND DIRECTING CLERK OF COURT TO CLOSE CASE [ECF Nos. 29, 33) Plaintiff Jesse Adame is appearing pro se and in forma pauperis in this civil rights action 17 18 ) ) ) ) ) ) ) ) ) ) pursuant to 42 U.S.C. § 1983. 19 I. 20 BACKGROUND 21 Plaintiff Jesse Adame, a former state prisoner proceeding pro, filed this civil rights action 22 pursuant to 42 U.S.C. § 1983 on October 14, 2014. This case is set for jury trial on November 1, 23 2016, on Plaintiff’s claims for excessive force against Defendants Vallejo and Mariscal. Plaintiff’s pretrial statement was due on or before August 25, 2016, but he failed to file one, 24 25 and he has not filed a response to the order to show cause filed on September 6, 2016. 26 /// 27 /// 28 /// 1 1 II. 2 FAILURE TO COMPLY WITH COURT ORDER 3 On May 13, 2016, the Court issued a scheduling order requiring Plaintiff to file a pretrial 4 statement on or before August 12, 2016. Plaintiff failed to file a pretrial statement; therefore, on 5 August 18, 2016, the Court directed Plaintiff to file his pretrial statement on or before August 25, 6 2016. Plaintiff failed to file a pretrial statement, and failed to appear for the telephonic pretrial 7 conference held on September 2, 2016. Thus, on September 6, 2016, the Court ordered Plaintiff to 8 show cause within fourteen days why the action should not be dismissed, with prejudice, for failure to 9 prosecute the action. (ECF No. 33.) Plaintiff was warned that the failure to respond to the order 10 would result in dismissal of this action, with prejudice. More than fourteen days have passed and 11 Plaintiff has not filed a response to the order. 12 The failure to obey a scheduling order is grounds for the imposition of sanctions. Fed. R. Civ. 13 P. 16(f)(1)(C). The Court’s order to show cause warned Plaintiff that the failure to respond to the 14 order would result in dismissal. (ECF No. 33.) 15 A scheduling order is not a frivolous piece of paper, idly entered. Johnson v. Mammoth 16 Recreations, Inc., 975 F.2d 604, 610 (9th Cir. 1992) (quotation marks and citation omitted). Parties 17 are required to exercise due diligence, Zivkovic v. Southern California Edison Co., 302 F.3d 1080, 18 1087 (9th Cir. 2002) (citing Johnson, 975 F.2d at 609), and the Court finds that Plaintiff’s failure to 19 file a pretrial statement and failure to respond to the order to show cause warrant the imposition of 20 sanctions. 21 III. 22 DISMISSAL AS A SANCTION 23 The Court has the inherent power to control its docket and may, in the exercise of that power, 24 impose sanctions where appropriate, including dismissal of the action. Bautista v. Los Angeles 25 County, 216 F.3d 837, 841 (9th Cir. 2000). In determining whether to dismiss an action for failure to 26 comply with a pretrial order, the Court must weigh: (1) the public’s interest in expeditious resolution 27 of litigation; (2) the court’s need to manage its docket; (3) the risk of prejudice to the defendants; (4) 28 the public policy favoring disposition of cases on their merits; and (5) the availability of less drastic 2 1 sanctions. In re Phenylpropanolamine (PPA) Products Liability Litigation, 460 F.3d 1217, 1226 (9th 2 Cir. 2006) (quotation marks and citation omitted). These factors guide a court in deciding what to do 3 and are not conditions that must be met in order for a court to take action. In re PPA, 460 F.3d at 1226 4 (citation omitted). 5 This case has been pending since 2014, and it is set for jury trial in less than two months. The 6 expeditious resolution of litigation and the Court’s need to manage its docket weigh in favor of 7 dismissal. Id. at 1227. This action has been pending for almost two years, and Plaintiff had ample 8 time to begin trial preparation and comply with the scheduling order. Id. The Court has an extremely 9 heavy caseload, and when litigants disregard orders of the court and deadlines, the Court’s ability to 10 manage its docket and guide cases toward resolution is significantly compromised. Id. 11 As for the risk of prejudice, while the mere pendency of an action does not constitute 12 prejudice, the impairment of Defendants’ ability to proceed to trial is prejudicial. Id. at 1227-28 13 (quotation marks omitted). 14 Regarding the fourth factor, while public policy favors disposition on the merits and therefore 15 weighs against dismissal, it is Plaintiff’s own conduct which is at issue here and which has stalled the 16 case. Id. at 1228. 17 Finally, there are no alternative sanctions which are satisfactory. A monetary sanction has 18 little to no benefit in a case in which Plaintiff has ceased responding to the Court’s orders. In addition, 19 Plaintiff is a former state prisoner and ceased communication with the Court and defense counsel. 20 (ECF No. 33.) 21 Discovery is closed and the deadline for filing pretrial motions has passed, rendering 22 unavailable the Court’s ability to impose any limitations on Plaintiff in those areas as a sanction. 23 Lastly, the preclusion of evidence or witnesses is not an available sanction given that Plaintiff failed to 24 identify any exhibits or provide a witness list via a pretrial statement. See Local Rule 281(b)(10),(11). 25 In conclusion, the Court finds that dismissal is warranted given the procedural posture of this 26 case, Plaintiff’s failure to comply with the pretrial scheduling order, and the unavailability of 27 satisfactory alternative sanctions. In re PPA, 460 F.3d at 1228-29. 28 3 1 IV. 2 ORDER 3 For the reasons set forth herein, it is HEREBY ORDERED that: 4 1. 5 jury trial set for November 1, 2016, at 8:30 a.m. are VACATED; 2. 6 7 The telephonic motions in limine hearing set for October 17, 2016, at 10:00 a.m. and This action is dismissed, with prejudice, based on Plaintiff’s failure to file a pretrial statement in compliance with the scheduling order; and 3. 8 The Clerk of the Court is directed to terminate this action. 9 10 IT IS SO ORDERED. 11 Dated: 12 September 21, 2016 UNITED STATES MAGISTRATE JUDGE 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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